Under the common interest doctrine, separately represented clients may sometimes share privileged communications without triggering a waiver. The doctrine applies only if the clients have essentially an identical legal interest. Among the wide variation in judicial application of the doctrine, courts disagree about whether the doctrine can ever protect direct client-to-client communications without a lawyer present.
In Gucci America, Inc. v. Gucci, No. 07 Civ. 6820 (RMB) (JCF), 2008 U.S. District LEXIS 101760, at *3-4 (S.D.N.Y. Dec. 15, 2008), well-respected Southern District of New York Magistrate Judge James Francis held that “[i]f information that is otherwise privileged is shared between parties that have a common legal interest, the privilege is not forfeited even though no attorney either creates or receives that communication.” Judge Francis gave the example of a client passing along to a co-defendant (outside a lawyer’s presence) his lawyer’s recommendation that the client move for summary judgment.
Not all courts take this broad a view of the common interest doctrine, but lawyers should be prepared to seek as much protection as the pertinent court allows.